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Avoiding Careless Proposal Preparation Can Help Save Business

On Behalf of | Jan 17, 2014 | Business Litigation

In a recent and instructive case, a company that had successfully performed contracts at Camp Pendleton for almost a decade lost a recent contract because it carelessly prepared its proposal. It failed to follow precisely the proposal instructions, relying instead on two wrong assumptions. First, it assumed that its good record would let the government overlook short-comings in its proposal. Second, these “short-comings” involved failing to fill in all the blanks the solicitation required; the company wrongly assumed that the government would blindly accept its explanation for the missing data. If the company had obtained an independent “second-view” of its draft proposal, these errors would have been corrected, leading to an acceptable proposal and more revenues.

A Navy solicitation for installation and repair of fencing warned offerors that any proposal that did not “clearly meet the minimum requirements of the solicitation” would be technically unacceptable.” Safety was to be evaluated in two ways. One way was an offeror’s “experience modification rate” (EMR) for the past three years; this compared a company’s annual losses in insurance claims against its policy premiums. The other way was the offeror’s “Days Away from Work, Restricted Duty, or Job Transfer” (DART) rate, as defined by the U.S. Department of Labor for the previous 3 years. If an offeror was not able to provide these, it had to “affirmatively state so, and explain why.”

The offer from Cherokee Chainlink and Construction provided nothing on either safety measure, although it did tell the Navy that its insurance “premiums were too low to generate an EMR.”  After Cherokee lost the contract because it failed to provide the required safety information, Cherokee protested to the Government Accountability Office (GAO). Cherokee argued that listing a “0” for its 2010 and 2012 DART rates was not necessary because “it was apparent that Cherokee had zeros for every year as the EMR was zero.” Perhaps Cherokee thought this was “apparent” based on its decade-long record of good performance.

GAO disagreed and the company lost the protest. Cherokee should have provided the DART rates required by the solicitation. “While Cherokee argued in its protest that the Navy should have otherwise known that the protester’s DART rates were zero based upon its statement in its proposal that its premiums were too low to generate an EMR, the Navy explained in its report that it could not presume Cherokee’s DART rates for 2010 and 2012 based upon this statement concerning the firm’s EMR.”

All Cherokee had to do to make its proposal acceptable for this factor was to fill in the blanks or at least explain clearly why there were blanks in its proposal. It should have assumed nothing, and unfortunately lost the work. Cherokee Chainlink & Construction Inc., B-408979, January 3, 2014.

The lawyers at Berenzweig Leonard have seen hundreds of technical proposals and can provide your company an independent “second-view” of your technical proposal prior to submitting it to the government. In previous blog articles, we have described a number of easily avoidable fatal mistakes that have unnecessarily cost offerors valuable contracts. With all the time and money a company spends on preparing a technical proposal, an inexpensive, independent second-view of your technical proposal is always a smart investment.

Terrence O’Connor is the Director of Government Contracts for Berenzweig Leonard, LLP, a DC regional business law firm. Terry can be reached at [email protected]

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